As two cases make their way to the Supreme Court of the United States, attorneys, officers, and defendants await a final answer regarding the constitutionality of warrantless cellphone searches.

Updated January 20, 2014: The Supreme Court granted cert. to the two cases discussed below, with oral argument likely to be scheduled for April.

The Fourth Amendment of the United States Constitution protects citizens against unreasonable searches and seizures and requires a warrant based on probable cause before the police can conduct a search. Exceptions to the warrant requirement do exist, however, and anyone who has taken a course in Criminal Procedure understands that the line between reasonable and unreasonable searches and seizures often is blurred. As is so often the case, the advancements in and ubiquity of technology have only added to the confusion in recent years.

Beginning with pagers, questions have arisen regarding when the police can search one’s personal technological devices and how far that search can reach. Within the last decade, the conversation has moved from pagers to cell phones and now involves smartphones. Courts across the country have issued varying opinions regarding warrantless searches of cellphones, and in Summer 2013, the Supreme Court received petitions for a writ of certiorari in two cellphone search cases.

Courts generally have held that defendants have a reasonable expectation of privacy in the contents of their cellphones.

To warrant protection against unreasonable searches and seizures under the Fourth Amendment, one must have an objectively reasonable expectation of privacy in the area being searched. Courts generally have held that defendants have a reasonable expectation of privacy in the contents of their cell phones. For example, in US v. Finley (pdf), one of the leading cases in this largely unchartered area, the U.S. Court of Appeals for the Fifth Circuit concluded that the defendant had a property interest in his cellphone and a right to exclude others from using it. The officers, upon arresting the defendant during a traffic stop, searched the defendant, extracted his work cellphone from his pocket, and searched its call log and text messages. Although the phone belonged to Finley’s employer, the court determined that Finley maintained an expectation that it would be free from governmental and police intrusion. Similarly, the Nebraska District Court in US v. McGhee held that because of the wide range of information likely contained in a cellphone, the defendant, arrested for conspiracy to distribute and the distribution of narcotics, maintained a reasonable expectation of privacy in its contents.

Despite their agreement regarding the reasonable expectation of privacy, the courts in these cases reached different holdings regarding the overall constitutionality of the warrantless searches. In McGhee, the court held that the warrantless search of the defendant’s cell phone was unreasonable: the phone did not present a risk to officer safety, the officers had no reasonable belief that the phone would produce evidence of the crime for which the defendant was arrested, and the defendant was reasonable to expect the contents of his cellphone would be free from intrusion. Without a warrant, the search was unreasonable. The Finley court, however, held that although the defendant maintained a reasonable expectation of privacy in his cellphone’s contents, the search of the phone was reasonable as a search incident to a lawful arrest. According to this court, no warrant was necessary.

In some cases, courts have extended the search incident to a lawful arrest exception to allow warrantless searches of personal technological devices.

The search incident to a lawful arrest is an oft-cited exception to the Fourth Amendment’s warrant requirement. Upon arresting a suspect, officers may search the person for weapons or destructible evidence of the crime for which he has been arrested. The exception has been extended to allow warrantless searches of objects within the arrestee’s immediate control and the suspect’s vehicle. And in some cases, the exception has been extended to allow warrantless searches of cellphones and other personal technological devices.

Before cellphones inundated everyone’s hands and ears, electronic pagers were the personal communication devices of choice. As a result, the first cases involving warrantless personal technology searches involved pagers. In US v. Ortiz, the defendant was arrested on heroin charges, and officers searched his pager upon arresting him. The court found, not surprisingly, that the owner of a pager has some expectation of privacy in the pager’s contents. Despite this, the court held the warrantless search of a pager is constitutional as a search incident to arrest. To support its holding, the court touted the “finite nature of a pager’s memory” and the fact that a pager’s contents can be destroyed easily. Because of this, the court found it “imperative the law enforcement officers have the authority to immediately ‘search’…information from a pager in order to prevent its destruction as evidence.”

But pagers have fallen to the wayside, replaced by cellphones whose memories are larger and whose contents are not so easily erased. Nonetheless, some courts—like the aforementioned US v. Finley, for example—have allowed warrantless cellphone searches as incident to lawful arrests. Because the officers believed Finley’s cellphone to contain information about drug use and drug trafficking, the crimes for which he was arrested, the court upheld the search as incident to a lawful arrest.

In other cases, however, courts have not been so eager to apply this warrant exception to cellphone searches. In US v. Park, another leading case in the area, the court held a warrantless station house search of the defendant’s cellphone to be unlawful. The court found that the search was too far removed from the arrest and the phone posed no threat to the officers’ safety. Further, the ability of modern cellphones to store large amounts of information eliminated the possibility that evidence would be destroyed while officers obtained a warrant. The court held, therefore, that the warrantless search did not meet the requirements of a search incident to a lawful arrest. As evidenced by the varying results in Finley, Park, and other such cases, whether a warrant exception applies to cellphone searches may depend largely on the characterization of the device itself.

The rapid evolution of personal communication devices seems to have left courts unsure of how to address issues involving cellphones and smartphones.

As technology evolves, the law is forced to evolve with it – or at least as quickly behind it as possible. The rapid evolution of personal communication devices seems to have left courts unsure of how to address issues involving cellphones and smartphones, and this confusion is seen readily in issues of warrantless searches. The Ohio Supreme Court, in State v. Smith, addressed the issue head-on, concluding that the constitutionality of a warrantless cellphone search “depends [in part] upon how a cellphone is characterized.”

Citing both Finley and Park, the court examined whether a cellphone should be considered a closed container, as it was in Finley, or a type of computer, as it was in Park. Were the phone analogous to a container, the defendant would have a lower expectation of privacy in the device. Were it to be found more like a computer, the defendant would have significant privacy interests in his cellphone.

Ultimately, the Ohio Supreme Court rejected the Finley characterization as an open container and found that a cellphone was more like a computer. Modern cellphones have the capacity to store large amounts of personal information, much like laptops, heightening the defendant’s privacy interest in the phones. Because the court concluded that an individual’s expectation of privacy in a cellphone goes beyond that in a pager or closed container, it held that the warrantless search of a cell phone, even one seized incident to a lawful arrest, violated the Fourth Amendment.

Of the twenty-six states whose courts have issued opinions, only six require warrants for searches of cellphones.

Perhaps because of the complexity of the issue, few courts have ruled on warrantless searches of cellphones. Of the twenty-six states whose courts have issued opinions, only six require warrants for searches of cellphones. With so few decisions and so much disagreement, it is no surprise that two cellphone cases petitioned to be heard by the Supreme Court of the United States with the hope of receiving a final answer regarding the constitutionality of these searches.

The first case, US v. Wurie (pdf), involves the 2007 arrest of a Massachusetts man for allegedly selling crack cocaine from his vehicle. When police arrested him, they seized Wurie’s cellphone and noticed calls being received from “My House” and subsequently opened the phone to obtain the number for “My House.” This led them to Wurie’s home, where they found money, narcotics, and firearms. The U.S. Court of Appeals for the First Circuit overturned Wurie’s conviction, holding that police should have obtained a warrant. In its petition for certiorari (pdf), however, the United States Government asks the Supreme Court to find that warrantless searches of cellphones do not violate the Fourth Amendment because cell phones are the same as any other possession on an arrestee’s person.

In the second case, Riley v. California, police stopped the defendant because the license plates of the car he was driving were expired. Upon deciding to impound the vehicle, police searched it and found loaded guns, leading to Riley’s arrest and the subsequent search of his cellphone. The warrantless cellphone search revealed information relating to Riley’s involvement in a San Diego gang shooting. Unlike the Wurie court, however, the appellate court in Riley held the search of his cellphone incident to a lawful arrest did not violate the Fourth Amendment.

What makes these cases interesting, aside from their opposite results, is the technology involved. The cellphone searched in Wurie was a flip phone, which holds decidedly less information than a modern smartphone. The cellphone searched in Riley, however, was a smartphone and involved a much more invasive search by police. It was the cursory search of Wurie’s flip phone call log, however, that was deemed unconstitutional, not the search of Riley’s contacts, videos, and pictures. Given the court’s reasoning in State v. Smith, highlighting the relationship between the technological advancement of modern phones and an arrestee’s reasonable expectations of privacy, one would expect the opposite result. The smartphone that essentially is a handheld computer should require a warrant to be searched, not the flip phone that is just a few steps above a pager.

The smartphone that essentially is a handheld computer should require a warrant to be searched, not the flip phone that is just a few steps above a pager.

The Supreme Court’s decision potentially impacts the majority of the country’s population. Upon Apple’s release of the iPhone in June 2007, smartphone ownership has increased rapidly. In May of 2011, approximately 35% of Americans owned a smartphone; that number increased to 56% in May of 2013. More importantly, 91% of Americans own some type of cellphone, smart or otherwise. It is, therefore, not just a few unlucky arrestees who bear interest in whether warrantless searches of cellphones are unconstitutional.

Harper Gwatney, originally from Goldsboro, North Carolina, served as an Associate Editor for the Campbell Law Observer during the 2013-2014 academic year. She was also a member of the school's Mock Trial Team and an Associate Chair of the Old Kivett Advocacy Council. Prior to law school, Harper received a Bachelor's degree in English from UNC-Chapel Hill and a Master's in the Art of Teaching from East Carolina University. Harper then taught Honors and IB English at Myers Park High School in Charlotte, North Carolina. Prior to her graduation from Campbell Law School in May 2014, Harper worked with Walker Allen Grice Ammons & Foy; Superior Court Judge Paul C. Ridgeway; the firm of Stewart Schmidlin Bullock and Gupta; and the Wake County District Attorney's Office.

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